Lemberes v. State

634 P.2d 1219, 97 Nev. 492, 1981 Nev. LEXIS 574
CourtNevada Supreme Court
DecidedOctober 26, 1981
DocketNo. 10001
StatusPublished
Cited by6 cases

This text of 634 P.2d 1219 (Lemberes v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lemberes v. State, 634 P.2d 1219, 97 Nev. 492, 1981 Nev. LEXIS 574 (Neb. 1981).

Opinions

[494]*494OPINION

By the Court,

Batjer, J.:

Appellants were each convicted of bribery of a public official in violation of NRS 197.0201 and perjury in violation of NRS 199.120.2 They were sentenced to five years on each count, plus a $5,000 fine on the bribery count. The sentences were suspended and each appellant was placed on probation for three years.

Beginning in July, 1974, the Washoe County Grand Jury conducted an investigation into the actions and conduct of public officials of the City of Sparks. Appellants James Vernon and Peter Lemberes were members of the Sparks city council. Between February 12 and April 9, 1975, Vernon and Lemberes each appeared at a number of special sessions of the grand jury and gave testimony which became the subject of the perjury charge. On April 23, 1975, the grand jury issued an “Interim Report”, in which it referred evidence of possible misconduct by Vernon and Lemberes to the District Attorney.

On August 22, 1975, the District Attorney filed an information charging Vernon and Lemberes with bribery in connection with an alleged offer of money to a fellow councilman in exchange for his opposition to the granting of a gaming license. The information charged that Vernon, while a city councilman and an employee of Meadow Gold Dairies of Nevada, had solicited the business of one Sidney Doan, Jr., at the Sierra 76 [495]*495Auto-truck Plaza located in Sparks. According to the information, when Vernon learned that Doan had decided against giving the account to Meadow Gold, Vernon told him that he would have difficulty getting licensed in Sparks. The information further charged that at Vernon’s inducement, Lemberes offered fellow councilman Michael Schultz compensation to influence Schultz to argue and vote against a gaming license for the operation of slot machines at the Sierra 76 truck stop. It was charged that at specified grand jury appearances, Vernon and Lemberes committed perjury by willfully, corruptly and falsely denying these facts under oath.

I. Preliminarily, appellants contend that the trial court erred in denying their motion to dismiss the information on the ground that the prosecutor improperly used the grand jury as a discovery tool.

Appellants particularly specify that they do not challenge the right of the grand jury to turn over evidence to the prosecutor, or the prosecutor’s right to make such evidence public upon court order. Appellants rely instead upon a due process argument based primarily on the analysis in United States v. Doss, 563 F.2d 265 (6th Cir. 1977). In that case, the federal court reversed judgments of conviction for perjury based upon testimony given before a grand jury regarding crimes for which the defendant had already been indicted. The court held that “substantial grand jury questioning of a secretly indicted defendant on the subject of the indictment represents prosecutional abuse which violates the due process clause of the Fifth Amendment and the right to counsel provision of the Sixth Amendment, and that such a proceeding is void.” 563 F.2d at 278-79. The court pointed out that the proceedings were without constitutional, statutory or case authority because “[t]he function of the grand jury clearly terminates with the issuance of the indictment.” Id. at 276.

This approach in Doss was, in turn, based upon Brown v. United States, 245 F.2d 549 (8th Cir. 1957), in which the court also reversed a perjury conviction based on testimony before a grand jury, when the record showed that the grand jury through the prosecutor

caused the defendant to be brought before it, without subpoena or opportunity to seek and take advice, for the purpose of extracting testimony from him, with a view to prosecuting him for perjury and without any purpose of obtaining from him any evidence upon which, in whole or [496]*496in part, it could find a true bill against anyone for any offense committed in whole or in part in Nebraska [the state in which the grand jury was sitting] ....

245 F.2d at 554. The court held that since such a purpose was not within the competency of the grand jury, the testimony obtained was not material to a legitimate inquiry and could therefore not form the basis of a perjury charge under the applicable federal statute. Cf. United States v. Icardi, 140 F.Supp. 383 (D.D.C. 1956).

Appellants contend that because the grand jury in this case did not return an indictment, Brown and Doss should be applied. Appellants’ argument ignores the clear distinction between the factual settings of those cases and this one. Here, appellants make no claim that the grand jury was without authority to inquire into corruption or possible criminal activities by public officials in the city government of Sparks. See NRS 172.175(l)(c).

In United States v. McInnis, 601 F.2d 1319 (5th Cir. 1979), cert. denied 445 U.S. 962 (1980), the court reversed a dismissal of perjury charges against a former district attorney, while upholding dismissal of the underlying kidnapping charges investigated by the grand jury. The court noted that the validity of the charge on the underlying offense had no bearing on the propriety of the investigation itself. “Because it is an investigatory agency, and because its primary function is to safeguard defendants from prosecution without probable cause, not to aid the government, the grand jury must necessarily be able to investigate activities that it might later decline to indict.” 601 F.2d at 1327. The court refused to apply Doss, noting that the testimony upon which the perjury charge was based did not follow an indictment.

In United States v. Mandujano, 425 U.S. 564 (1976), the Supreme Court refused to suppress evidence of false statements given to a grand jury in a prosecution for perjury, despite a claim that they were not preceded by appropriate Miranda warnings. Chief Justice Burger, writing for the plurality, noted that the authority to compel the attendance and the testimony of witnesses is indispensable to the exercise of the legitimate powers of the grand jury, id. at 571, and that “[i]n this constitutional process of securing a witness’ testimony, perjury simply has no place whatever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative.” Id. at 576. The Chief Justice distinguished federal cases, such as Brown, voiding convictions for [497]*497perjury “where the investigatory body was acting outside its lawful authority.” Id. at 582, n. 8. No such situation exists here.

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Bluebook (online)
634 P.2d 1219, 97 Nev. 492, 1981 Nev. LEXIS 574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lemberes-v-state-nev-1981.